Daffy v G J & S Hynes Pty Ltd atf Hynes Family Trust t/as Ray White Oxenford/Helensvale [2024] QCATA 30

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Daffy v G J & S Hynes Pty Ltd atf Hynes Family Trust t/as Ray White Oxenford/Helensvale [2024] QCATA 30 PARTIES: DENNIS MALCOLM DAFFY (appellant) v G J & S HYNES PTY LTD ATF HYNES FAMILY TRUST T/AS RAY WHITE OXENFORD / HELENSVALE (respondent) APPLICATION NO/S: APL327-22 ORIGINATING APPLICATION NO/S: MCDT717/22 Southport MATTER TYPE: Appeals DELIVERED ON: 6 March 2024 HEARING DATE: 23 February 2024 HEARD AT: Southport DECISION OF: Member Gordon ORDERS: Leave to appeal is granted and the appeal is allowed. The order made in MCDT717/22 (Southport) on 11 October 2022 is set aside. MCDT717/22 (Southport) is returned to the tribunal for reconsideration before a different Adjudicator. Evidence given at the hearing on 11 October 2022 (as contained in the transcript of that hearing) shall be admissible at the reconsideration hearing. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the tenant left goods at the premises at the end of his tenancy – where the lessor removed the goods without putting them into storage and waiting one month – where the lessor successfully claimed the amount of the rental bond as compensation for removing the goods – where the procedure followed by the lessor was only permitted if the lessor had a reasonable belief that the market value of all the goods was under $1,500 – where the Adjudicator did not decide that issue – whether leave to appeal should be given and the decision set aside -- 1 of 4 -- 2 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 363 Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), s 26, s28. APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Did not appear REASONS FOR DECISION [1] This appeal concerns goods left in the premises by the tenant Dennis Malcolm Daffy, at the end of his residential tenancy. The lessor through the agency of Ray White, claimed $1,120 for the cost of removing the goods. By accident or design, this was the amount of the rental bond. At a bond hearing the Adjudicator accepted the lessor’s case and ordered the rental bond to be released to the lessor in full. [2] There are two different procedures which the lessor must follow to deal with goods left at the premises. Of relevance to this appeal, the procedure which must be followed depends on whether the lessor believes on reasonable grounds that the market value of the goods is less than an amount prescribed by regulation, at that time $1,500.1 This may be called the summary procedure.2 [3] The summary procedure is that the lessor may sell the goods or dispose of them in another way.3 The summary procedure was used here. The tenant left the premises on 5 May 2022. The goods were removed by 20 May 2022. [4] If the summary procedure cannot be used, because (of relevance to this appeal) the lessor does not believe on reasonable grounds that the market value of the goods is less than $1,500,4 then the lessor must store the goods safely for one month.5 If after the end of the storage period the goods have not been reclaimed then the lessor may sell the goods by auction or apply to the tribunal for an order authorising their disposal. [5] If the wrong procedure to sell or dispose of the goods is followed, then this is an offence, unless the lessor or the lessor’s agent has a reasonable excuse.6 It would also be a breach of contract because the standard form residential tenancy agreement requires that the lessor not treat belongings left behind as the lessor’s own property but that they must deal with them under sections 363 and 364 of the RTRAA.7 1 Section 26 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld). 2 There are other beliefs on reasonable grounds, not relevant to this appeal, which require the summary procedure to be followed. They are that storage of the goods would be unhealthy or unsafe, or would cause the market value of the goods to be completely or substantially depreciated, or the cost of removing storing and selling the goods would be more than the proceeds of the sale of the goods. 3 Section 363(2) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). 4 Or any of the other forms of belief in note 2 above. 5 Section 363(3) and (4) of the RTRAA referring to a ‘storage period’ prescribed by regulation, in this case one month prescribed by section 28 of the Regulation. 6 Section 363(6) of the RTRAA. 7 Clause 41 of the residential tenancy agreement. -- 2 of 4 -- 3 [6] If, before the goods are disposed of, the owner of the goods claims possession of them by written notice given to the lessor or the lessor’s agent, then the owner must be allowed to reclaim them on paying reasonable removal and storage costs. It is an offence if the lessor or lessor’s agent do not follow this procedure.8 [7] If the goods are sold, then the proceeds of sale must be paid to the public trustee within 10 days after the sale, after deduction of the reasonable cost of removing, storing and selling the goods.9 The tribunal can make an order about who should have the money paid to the public trustee.10 [8] The difficulty with the decision when hearing the bond claim was that the Adjudicator made the decision in the belief that the summary procedure could be followed if no single item of goods remaining on the premises was of the value of $1,500 instead of the true test, that is if the market value of all the goods taken together was less than $1,500. [9] This appears from the Adjudicator’s question of the property manager:11 Adjudicator: You described some of the things that were still left in the premises. Were there any things that you believed were valued more than $1,500? Property manager: No. No. [10] And it appears from the Adjudicator’s description of the relevant provisions when giving oral reasons.12 [11] There was evidence given at the hearing that was sufficient for the Adjudicator to reach the view that the lessor was entitled to follow the summary procedure on applying the wrong test. The property manager described what was left behind as ‘an entire household of rubbish and junk and hoarding’.13 [12] But the tenant said otherwise. He said:14 There were a number of quite expensive pieces of furniture. There was a refrigerator worth $1,000. There was a washing machine worth about $300 or $400. There was a bookcase with about $5,000 worth of books, right, left there. In fact there were two bookcases left there. [13] The main issue was whether the lessor (or in this case the lessor’s agent acting on behalf of the lessor) held the belief that the overall value of all the items was less than $1,500 and if that belief was held whether that belief was reasonable. [14] Seemingly because of the misinterpretation of the test, the Adjudicator did not decide that issue. 8 Section 363(7) of the RTRAA. 9 Section 363(8) of the RTRAA. 10 Section 363(10) of the RTRAA. 11 Transcript 1-7 line 5. 12 Transcript 1-20 line 27, and 1-21 line 7. 13 Transcript 1-5 line 3. 14 Transcript 1-7 line 17. -- 3 of 4 -- 4 [15] If the Adjudicator had considered this issue, then an email in the file would have been relevant. It was sent by the tenant in the evening of 4 May 2022, that is the day before he was evicted. He said: In the event that I am not able to clear everything out tomorrow, you are to note and acknowledge that there will be in excess of two thousand dollars of my personal effects and furniture left behind. Can I arrange with you to collect all my personal effects, goods and chattels from (the premises) next Monday (09/05) or next Tuesday (10/5 - preferable)? [16] This email would have been considered together with the evidence given by the property manager at the hearing that on the date of the eviction, that is 5 May 2022, she and one other helped the tenant remove some expensive items into the tenant’s truck.15 [17] It is notable that if the Adjudicator had found that the lessor (or in this case the lessor’s agent acting on behalf of the lessor) held the belief that the overall value of all the items was $1,500 or more, or that a belief that they were worth less than that was unreasonable, then the lessor’s disposal of the goods without storing them for a month would have been an offence (unless the lessor or the lessor’s agent had a reasonable excuse). It would also have been a breach of the residential tenancy agreement. If there was such offence or breach then it would be difficult to see that the lessor could claim the cost of removing the goods. [18] It also seems to me that the tenant did not have a fair hearing because he raised the effect of section 363 with the Adjudicator and said that it had been contravened because he was not given an opportunity after leaving the premises to collect his goods.16 This submission was not considered completely. Orders to be made in the appeal [19] Appeals of this sort need leave and I grant leave to appeal. I set aside the decision. Since I have decided the appeal on the question of law, I may substitute my own decision or return the matter to the minor civil disputes list for reconsideration. Since the main issue as described above is not appropriately dealt with on appeal, I need to return the matter to the tribunal for reconsideration. 15 Transcript 1-4 line 31 and 1-7 line 10. The tenant accepted that some items were removed but claimed that there were expensive items remaining – transcript 1-5 line 43, 1-7 line 17, 1-9 line 12. 16 Transcript 1-6 line 22. -- 4 of 4 --